Thursday, April 30, 2015

Is the Sex Discrimination Rationale in the SSM Cases Narrower?

by Michael Dorf
During Part 1 of Tuesday's oral argument in the SSM cases, CJ Roberts created a stir when he asked the lawyer for the state the following question: "if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?" Writing in the NY Times, Adam Liptak suggested that the Chief Justice's question hinted at a possible narrower ground on which he might join the presumed five other votes for a right to SSM. Stating what has become more or less the emerging conventional wisdom, Liptak wrote that CJ Roberts "may have found a modest path that would not require revision of constitutional standards for discrimination based on sexual orientation."

I have long agreed with the argument that laws banning SSM are unconstitutional under the equal protection rationale of Loving v. Virginiafor exactly the reason articulated by the Chief Justice. And of course I would be very pleased were the Chief to write a concurrence or a majority opinion that was based on the sex discrimination argument. However, I disagree with the claim that a sex discrimination rationale would be narrower than an expressly sexual orientation discrimination rationale or a fundamental right rationale. Let me explain.

The chief objection to the sex discrimination rationale is that it is formalistic. Yes, barring Tom but not Sue from marrying Joe formally draws a distinction based on sex but not in a way that is at all invidious with respect to sex. By contrast, everyone understood that the social meaning of laws banning interracial marriage was white supremacy. The social meaning of laws banning same-sex marriage is hetero supremacy but not patriarchy or the like. The use of a sex-based classification to ban same-sex marriage, in this view, is something like the use of race in a race-based identification of a criminal suspect: Formally, it uses race (or sex) but as a substantive matter there's no race or (sex) discrimination.

That initially looks like a good objection, but it doesn't stand up to analysis, and the way in which it fails is instructive. The analogy itself is problematic because, as Stanford Law Professor Rick Banks has argued insightfully, race-based identifications are not in fact as benign as generally assumed. Because race is a social construct and not simply a biological fact, race-based descriptions often incorporate racial stereotypes.

More directly to the present point, whatever one thinks about racial identifications, laws that ban SSM do not merely draw formal distinctions based on sex. They rely on the very sorts of stereotypes about proper sex roles that the modern sex discrimination cases condemn as the central problem with laws that discriminate on the basis of sex. Just as it's sex-stereotyping for the state to say a woman can't be a lawyer because women are supposed to be wives and mothers, so it's sex-stereotyping for the state to say a woman can't marry a woman or a man can't marry a man because men should be with women. Put differently, discrimination on the basis of sexual orientation is sex discrimination in a substantive, not just a formal sense.

But relying on the argument of the foregoing paragraph to defeat the objection to the Loving analogy for sex means that a holding that SSM bans are invalid on sex discrimination grounds would have broad implications for other state laws and policies that discriminate on the basis of sexual orientation. If sexual orientation discrimination is sex discrimination, then such laws and policies are subject to the same (nominally intermediate but often even tougher) level of scrutiny that applies to other laws and policies that discriminate on the basis of sex. By rooting the decision in the constitutional law applicable to sex discrimination, the Court (or CJ Roberts for himself) would not be issuing a narrower ruling.

To be sure, the sex discrimination argument might be attractive to CJ Roberts anyway, because he could say that he is simply applying Loving in a formalistic way with respect to sex. His answer to the objection that this is formalism would be, in essence, "so what?". As a supporter of color-blindness with respect to race, CJ Roberts believes in equal protection formalism. I don't think CJ Roberts would be prepared to fully follow through on sex classification formalism. For example, I don't imagine that he would require an "exceedingly persuasive justification" (the characterization of the sex discrimination test in United States v. Virginia) for sex-segregated restrooms in government buildings. But maybe he would; he might be prepared to say that interests in privacy satisfy the test.

Still, even a formalistic understanding of sex discrimination in the SSM case would have broad implications and applications, because just about every law and policy that classifies people based on same-sex attraction or same-sex conduct necessarily involves drawing sex distinctions in exactly the same way as the hypothetical example of Sue, Joe, and Tom does.

To reitierate, I think that's fine. I agree that sexual orientation discrimination is sex discrimination both formally and substantively. But as a consequence, a ruling on this basis would be at least as sweeping as a sexual orientation ruling simpliciter. Indeed, the approach suggested by the Chief Justice's question is potentially broader than the sort of anti-animus approach of Romer and Windsor. The latter is nominally not heightened scrutiny at all, whereas treating laws barring SSM as sex-discriminatory makes sexual orientation (at least) a de facto semi-suspect classification.

15 comments:

Extremely interesting analysis. Perhaps even Kennedy might consider the sex-discrimination angle so as to resolve his conundrum relative to the "millennia" of man/woman marriage tradition vs. the dignity of same sex couples?

I think sex discrimination is a good argument but as yo say it would put any classification here into an existing strict(er) scrutiny regime. The charm of sexual orientation seems to be that there is a somewhat weaker level, even if it is still de facto intermediate review.

So, I'm unsure what value it is for CJ Roberts to use it over sexual orientation. He will find it a "neater" argument? He doesn't seem that concerned with that sort of thing to me.

The Sex Discrimination/EP angle is "narrower" in the sense that it avoids the slippery slope of expanding the fundamental right to marry to include same sex couples. If the fundamental right is to be construed more broadly than our history and traditions would indicate, then why would it not include incest, polygamy, and pederasty?

Equal protection analysis under an existing category with a defined standard would appeal to the CJ's "it means what it says" mentality, and the way to stop discrimination based on sex is to simply stop discriminating on the basis of sex. Sexual orientation discrimination is, clearly, discrimination based on sex.

This angle avoids the whole "is it animus" debacle, and clears up the mess of Kennedy's amorphous reasoning in Lawrence and Windsor. Basing the opinion on the plain meaning of the 14th amendment's text would force Justice Scalia to either go along quietly or acknowledge that he's not quite as textualist as he claims.

1. I recall that Roberts was very opposed to creating new categories of unprotected speech in the crush video case. Perhaps something of that reluctance is on display here, in that he is uncomfortable declaring (or creating in his view) new discrimination classifications.

2. Stylistically, we have seen Roberts defend impactful rulings as nothing more than application of existing precedent. This seems to be his way of ushering in big change: as long as he can convince himself that he showed framework constraint, whatever happens as a result is fine.

By "animus debacle", I meant the fact that the states and their defenders on the bench would either vehemently deny or at least sarcastically question the attribution of animus to the state's choice to retain a definition of the marital relationship that has (allegedly) existed unchallenged for "millennia". Everybody knows the statutes and amendments at issue in these cases were passed as a reaction to the reality of same-sex marriage in Massachusetts, but apparently it's considered unkind in some circles to mention that fact.

Ruling on the basis of an existing category, with existing standards drawn from established precedent, and in a way that avoids the immediate slide down the slippery slope of "expanding" fundamental rights, should be attractive to more than just the Chief Justice. If I were the Chief, I'd tell Scalia and Thomas that if they refuse to sign on, they might discover there are five votes for a much broader (and therefore scarier) alternative.

I don't want to re-litigate stuff too much so deleted a couple replies.

But, I think at the very least the 'pederasty' citation should be removed. Consent is basic to rights and even free speech is limited for minors to some degree. I think incest/polygamy can be differentiated too, but won't belabor past comments.

The clarification of "debacle" is noted, but besides opening up sexual orientation to a broad existing level of scrutiny in one full swoop, the medicine has other side effects. Such as ignoring orientation is a clear issue here, including when determining "legitimate" purpose.

Existing precedent already provides a means here to limit things -- if anything, just rest on equal protection but sexual orientation. Existing precedent provides equal protection for "persons" of various types. This avoids the right to marry issue.

Kennedy likes "dignity." The liberals don't care. And, calling it by another name won't do much for Scalia. He will say whatever you call it you are broadly changing things. "Don't you believe it" he will say.

Think people believe finding a "sex discrimination" rationale would be narrow because it wouldn't provide any legal protection, at least explicitly, for sexuality.

But would it? If we take the sex discrimination rationale, doesn't that then make all discrimination against homosexuals a form of sex discrimination? If I fire my employee because he's gay, am I not also firing him because he's a man that engaged in activities that I'd find it ok for women to do, but not ok for men to do.

And wouldn't that then mean that Federal anti-discrimination law's protection against sex discrimination would necessarily protect against sexual-orientation discrimination?

In other words, the "narrow" ruling would not only require intermediate scrutiny for same-sex marriage bars, but would also grant federal protection for homosexual employees, something that would not happen if the Court found same-sex marriage laws discriminated on the basis of sexual orientation only.

Yes, the "narrow" ruling based on existing precedent provides the broadest result - and that's exactly the way it should be. Sexual orientation is not a recognized protected classification under Supreme Court equal protection jurisprudence. Had Justice O'Connor remained on the Court, things might be different. Kennedy's eloquent prose about dignity is well and good, but does not yield an intelligible principle to guide lower courts. A clear statement that sexual orientation is a component of the concept of sex (which ought to be self-evident to anyone but octogenarian papists and fundamentalists of all ages) would pretty much end the litigation train, allowing the courts to get back to other important issues like micromanaging states' implementation of capital punishment, slicing and dicing the term "reasonable" as applied to searches, or figuring out how to make actual innocence irrelevant in habeas corpus proceedings.

Yes, the "narrow" ruling based on existing precedent provides the broadest result - and that's exactly the way it should be.

So, the rule isn't really narrow, which underlines why Scalia at least won't really be impressed. Roberts also is a minimalist repeatedly. This was supposed to be something that attracts him. The "benefit" there is mixed.

Romer and Windsor both are "equal protection jurisprudence" cases. Both noted that the government cannot without a "legitimate purpose" discriminate on the basis of sexual orientation. Other cases also noted in general this is true for various things, including hippies or the disabled. These classifications might not all on their own have a special heightened scrutiny, but the USSC has protected classes of people in other ways too.

Kennedy's eloquent prose about dignity is well and good, but does not yield an intelligible principle to guide lower courts.

The "animus" principle goes back to at least the 1970s and has been used for years in various contexts. The cases also speak of a "legitimate" governmental interest. Many courts, including Posner's opinion, quite "inteligently" managed to show how discrimination against gays and lesbians here was irrational to promote any legitimate state interest. The states' arguments here have been (rightly) ridiculed as just not sensible all over the place.

A clear statement that sexual orientation is a component of the concept of sex (which ought to be self-evident to anyone but octogenarian papists and fundamentalists of all ages) would pretty much end the litigation train

after all sex and race doesn't continue to cause litigation? It is not that many really disagree that sex is a factor here, but the net benefit for Roberts, Scalia etc. is unclear.

I think Stuart hit the key point as to why sex discrimination is the best possible rationale here, because it would grant protections that even the Supreme Court can't--if sexual orientation discrimination is sex discrimination, then gays are automatically protected by the Civil Rights Act of 1964, something that given Republican control of Congress won't happen legislatively for some time.

The cases also speak of a "legitimate" governmental interest. Many courts, including Posner's opinion, quite "inteligently" managed to show how discrimination against gays and lesbians here was irrational to promote any legitimate state interest. The states' arguments here have been (rightly) ridiculed as just not sensible all over the place. meizusale.com